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United States Court of Appeals Case: 15-3553 Document: 28-2 Filed: 04/29/2016 Page: 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0102p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ DIXIE FUEL CO., LLC and BITUMINOUS CASUALTY ┐ CORP., │ Petitioners, │ │ > No. 15-3553 v. │ │ │ DIRECTOR, OFFICE OF WORKERS’ COMPENSATION │ PROGRAMS, UNITED STATES DEPARTMENT OF │ LABOR and ARLIS HENSLEY, │ Respondents. │ ┘ On Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor. No. 14-0049 BLA. Decided and Filed: April 29, 2016 Before: SUTTON and GRIFFIN, Circuit Judges; OLIVER, District Judge.* _________________ COUNSEL ON BRIEF: Mark E. Solomons, Laura Metcoff Klaus, GREENBERG TRAURIG LLP, Washington, D.C., for Petitioners. Gary K. Stearman, Rebecca J. Fiebig, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal Respondent. Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton, Virginia, for Respondent Hensley. *The Honorable Solomon Oliver, Jr., Chief United States District Court Judge for the Northern District of Ohio, sitting by designation. 1 Case: 15-3553 Document: 28-2 Filed: 04/29/2016 Page: 2 No. 15-3553 Dixie Fuel, et al. v. OWCP, et al. Page 2 _________________ OPINION _________________ OLIVER, District Judge. Petitioners Dixie Fuel Company, LLC and its insurer, Bituminous Casualty Corporation (collectively, “Dixie” or “Petitioners”), appeal the decision of the Benefits Review Board (“Board”) of the United States Department of Labor, affirming Administrative Law Judge (“ALJ”) Kenneth A. Krantz’s decision awarding Respondent Arlis Hensley (“Hensley”) benefits under the Black Lung Benefits Act (“Act”), 30 U.S.C. § 901, et seq. The Director, Office of Workers’ Compensation Programs, United States Department of Labor (“Director”), also appears in this matter as a respondent. This case is before the court for a second time. In adjudicating Dixie’s first petition for review, a prior panel of this court vacated the decision of the Board and remanded for further proceedings. See Dixie Fuel Co., LLC v. Dir., Office of Workers’ Comp. Programs, 700 F.3d 878, 881 (6th Cir. 2012). The court held that the ALJ erred by finding that Hensley’s x-ray evidence alone was sufficient to establish the existence of pneumoconiosis. Id. at 880. The panel remanded the case for the ALJ to weigh all of the evidence referenced in 20 C.F.R. § 718.202(a)(1)-(4)—x-rays, biopsy, medical opinions, and CT scans—together. Id. at 881. On remand, the ALJ again concluded that Hensley was entitled to benefits under the Act. Dixie now raises numerous challenges to the ALJ’s decision and the Board’s affirmance. For the following reasons, Dixie’s petition is denied. I. BACKGROUND A. Black Lung Benefits Act The Black Lung Benefits Act was passed and enacted to “provide benefits . to coal miners who are totally disabled due to pneumoconiosis.” 30 U.S.C. § 901(a). To establish entitlement to benefits under the Act, a claimant is required to prove, by a preponderance of the evidence, that: (1) he has pneumoconiosis; (2) his pneumoconiosis arose in whole or in part out of his coal mine employment; (3) he is totally disabled; and (4) the total disability is due to pneumoconiosis. Cent. Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 762 F.3d 483, 486 (6th Cir. 2014). Case: 15-3553 Document: 28-2 Filed: 04/29/2016 Page: 3 No. 15-3553 Dixie Fuel, et al. v. OWCP, et al. Page 3 B. Procedural History Arlis Hensley, born in 1949, was employed as a coal miner for thirteen years. Many of those years were spent with Petitioner Dixie Fuel Company. Hensley left Dixie in 1988 after seriously injuring his hand and arm in an accident. He has not worked since. Hensley also smoked cigarettes for about ten to twelve years, averaging half a pack a day before quitting approximately twenty-nine years ago. Hensley first noticed issues with his breathing in 1987, while still employed in the mines. In 1990, he filed his first claim for benefits under the Act. The Department of Labor denied his claim because he failed to prove that he had pneumoconiosis, that the pneumoconiosis arose out of his coal mine employment, or that he was totally disabled by the disease. He filed a second claim in 2003. This time his claim was denied, despite a finding of pneumoconiosis, because Hensley did not prove that he was totally disabled by the disease. Hensley did not appeal either of these decisions. Hensley filed the present claim for benefits on December 4, 2006. This time, the Department of Labor recommended awarding benefits. At the request of Petitioners, the matter was referred to an ALJ. The evidence, which consisted of chest x-rays, biopsy results, CT scans, pulmonary function studies, arterial blood-gas studies, treatment records and several medical opinions, was forwarded to the ALJ on September 14, 2007. On February 9, 2010, the ALJ issued a decision awarding Hensley benefits. As this was Hensley’s third claim, the ALJ had to first determine whether Hensley was totally disabled, the element of entitlement he failed to prove in his 2003 claim. See 20 C.F.R. § 725.309(c). On the basis of three medical opinions, the ALJ answered this question in the affirmative. The ALJ’s determination has not been challenged. The ALJ then considered the entirety of the medical evidence to determine that the remaining elements of Hensley’s claim had been established. Petitioners appealed the ALJ’s decision to the Board, which affirmed the award of benefits. After unsuccessfully moving for reconsideration before the Board, Dixie petitioned this court for review. On appeal, this court vacated the Board’s decision and remanded the case for the ALJ to weigh together all of the relevant evidence referenced in 20 C.F.R. § 718.202(a)(1)- Case: 15-3553 Document: 28-2 Filed: 04/29/2016 Page: 4 No. 15-3553 Dixie Fuel, et al. v. OWCP, et al. Page 4 (4). On remand, the ALJ reviewed numerous x-rays, several medical opinions, treatment records, CT scans, and a biopsy. Having weighed this evidence together, as instructed, the ALJ again concluded that Hensley had established the existence of pneumoconiosis. Petitioners, again, appealed the ALJ’s decision, which the Board, again, affirmed. This appeal followed. C. Medical Evidence On remand, the ALJ reconsidered all of the evidence discussed below. 1. X-ray Readings There were six readings of two x-rays, dated September 10, 1990 and February 23, 2004, which were submitted in support of Hensley’s prior claims. Dr. Sargent, dually qualified as a Board-certified radiologist and B-reader,1 interpreted the September 10, 1990 x-ray as positive for pneumoconiosis, while Dr. Gordonson, also dually qualified, and Dr. Dahhan, a B-reader, read this x-ray as negative for pneumoconiosis. Dr. Baker, a B-reader, interpreted the February 23, 2004 x-ray as positive for pneumoconiosis, while Dr. Halbert, dually qualified as a Board- certified radiologist and B-reader, read the same x-ray as negative for pneumoconiosis. When readings were in conflict, the ALJ considered the radiological qualifications of the physicians and gave determinative weight to the interpretations of dually qualified physicians. See 20 C.F.R. § 718.202(a)(1). Thus, he found the September 10, 1990 x-ray evidence to be in equipoise and the February 23, 2004 x-ray evidence to be negative for pneumoconiosis. Eleven readings of five x-rays were provided in support of the current claim, dated November 1, 2006, January 5, 2007, April 12, 2007, July 28, 2008, and January 16, 2009. Dr. Alexander, who is dually qualified, read the November 1, 2006 x-ray as positive for pneumoconiosis, while Dr. Wheeler, also dually qualified, read the x-ray as negative for pneumoconiosis. Three physicians read the January 5, 2007 x-ray. Dr. Ahmed, dually qualified as a Board-certified radiologist and B-reader, and Dr. Baker, a B-reader, interpreted the x-ray as 1A “B-reader” is a “physician [who] has demonstrated ongoing proficiency in evaluating chest radiographs for radiographic quality and in the use of the [International Labour Organization] classification for interpreting chest radiographs for pneumoconiosis and other diseases by taking and passing a specially designed proficiency examination . , and has maintained that certification through the date the interpretation is made.” 20 C.F.R. § 718.102(e)(2)(iii). Case: 15-3553 Document: 28-2 Filed: 04/29/2016 Page: 5 No. 15-3553 Dixie Fuel, et al. v. OWCP, et al. Page 5 positive for pneumoconiosis. However, Dr. Wheeler read the same x-ray as negative for pneumoconiosis. Dr. Dahhan, a B-reader, provided the only reading of the April 12, 2007 x-ray, which was positive for pneumoconiosis. Dr. Alexander read the July 28, 2008 x-ray as positive for pneumoconiosis, while Dr. Rosenberg, a B-reader, read the same x-ray as negative. Finally, Dr. Miller, who is dually qualified, read the January 16, 2009 x-ray as positive for pneumoconiosis, while Dr. Wheeler read the same x-ray as negative. In resolving conflicting evidence, the ALJ again gave greater weight to readings by dually qualified radiologists. As such, the November 1, 2006, January 5, 2007, and January 16, 2009 x-rays were found to be in equipoise, while the July 28, 2008 x-ray was found to be positive for pneumoconiosis. The April 12, 2007 x-ray was also found to be positive for pneumoconiosis, based on Dr. Dahhan’s uncontradicted reading. Considering the more recent x- ray evidence to be more relevant to a determination of pneumoconiosis, the ALJ noted that those readings were either positive for pneumoconiosis or in equipoise.
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